After you have served a Pre-Lien Notice, then the next step in the Mechanics Lien Process is to file the Mechanics Lien Affidavit with the County Clerk’s Office in the county where the Property is located prior to your Mechanics Lien filing deadline. a Mechanics Lien question. The Texas Property Code requires the following specific categories of information to be stated in the Mechanics Lien Affidavit in order for the Mechanics Lien to be valid:
Identification of the Claimant: The one who is owed money is referred to as the “Claimant.” If the Claimant is a registered entity, then the full legal name of the business should be stated. You will also need to identify the person who will sign the Affidavit on behalf of the entity and that person’s title with the company. If the Claimant is a d/b/a, then the person who is using the d/b/a needs to be identified, along with the d/b/a name. If the Claimant is an individual, then simply state that person’s full name. In addition to the above, the Affidavit must include: (1) the mailing and business address for the Claimant; and (2) the county of which the person who signs the Affidavit is a resident.
Identification of the Owner or Reputed Owner: The Mechanics Lien Affidavit must include the name and address of the Property Owner or the person or entity reasonably thought to be the Property Owner, otherwise known as the “reputed” Owner.
A Description of the Work Performed and Materials Furnished: All Claimants must include a description of the work or the materials furnished to the Project. Everyone but a General Contractor must also state the month(s) in which the work or materials were provided to the Project. Depending upon the information contained in your invoice, you may be able to satisfy this requirement by simply attaching the invoice(s). However, note that the County Clerk’s Office will generally charge an extra $4.00 for every page filed with the Mechanics Lien Affidavit. Therefore, sometimes it is cheaper and safer, to just describe the work and identify the months the work was performed in the Mechanics Lien Affidavit itself as opposed to relying on attached invoices. The Texas Property Code also permits use of common industry abbreviations to describe the work or materials; however, it is better practice to use complete words/sentences so as to avoid any confusion or miscommunication.
Identification of the Person Who Hired the Claimant: This requirement is satisfied by including the name and last known address of the person or company who hired you.
Identification of the General Contractor: Include the name and last known address of the Project General Contractor.
A Description of the Property: The Affidavit must contain a legally sufficient description of the Property. The description must be detailed enough for the tract of land to be identified with reasonable certainty. A lot-and-block description of the Property is preferred, but if not available, it may be sufficient to describe the Property by cross streets and/or a common name.
The Amount of the Claim: The Mechanics Lien Affidavit must state the amount claimed owed. Some examples of items that should not be included in calculating the Mechanics Lien amount are: (1) anticipated profits; (2) prejudgment interest; (3) returned materials not incorporated into the Project (if not specially fabricated); (4) Mechanics Lien costs; or (5) attorneys’ fees. Although attorneys’ fees and costs are recoverable under Texas Property Code Section 53.156, the amount incurred for these items cannot be included in the Mechanics Lien Affidavit.
Pursuant to Texas Property Code Section 53.024, the amount of a subcontractor’s Mechanics Lien may not exceed: (1) an amount equal to the proportion of the total subcontract price that the sum of the labor performed, materials furnished, materials specially fabricated, reasonable overhead costs incurred, and proportionate profit margin bears to the total subcontract price, minus (2) the sum of previous payments received by the Claimant on the subcontract.
Identification of Statutory Notices: All Claimants, other than General Contractors must state the date on which each Pre-Lien Notice was sent to the Property Owner and General Contractor, and identify the method by which the Notices were sent.
The Affidavit Must be Sworn Under Oath: This is accomplished by concluding the Affidavit with what’s known as a jurat, whereby the affiant affirms or swears under oath that the contents of the Affidavit are true. The jurat is made before a notary. Failure to use a jurat in the Affidavit will render it invalid and unenforceable.
After you have filed the Mechanics Lien Affidavit, the next step is to serve the Mechanics Lien Affidavit on the Property Owner and General Contractor (if applicable). See “Am I Required to Notify the Property Owner or the General Contractor That I File a Lien?” herein. The Lien Professor’s Mechanics Lien Kits include professionally designed Mechanics Lien Affidavits and instructions which explain in detail how to properly prepare, file, and serve the Mechanics Lien Affidavit.